Liability for Independent Contractor’s Torts

Liability for Independent Contractor’s Torts

First determine whether worker is employee or independent contractor (factors p. 573).

General rule: Employer is not liable for acts of independent contractors because Employer no right to control.

Exception

hazardous activities

Independent Contractor is liable for her own torts.  Case 32.3: Haag v. Bongers (1999).

Liability for Agent’s Intentional Torts

Liability for Agent’s Intentional Torts

Principal liable for intentional torts committed with the scope of employment.

Employee is a tortfeasor as well.

Employer is liable for Employee’s acts which Employer knew or should have known the Employee had a propensity to commit.

Employer Liability

Employer Liability

Departures from the Employer’s Business was departure minor or substantial?

Case 32.2: Joel v. Morrison (1834).

Borrowed Servants.

Notice of Dangerous Conditions.

Liability for Agent’s Negligence

Liability for Agent’s Negligence

Applies only to Employer-Employee relationships.

Doctrine of Respondeat Superior: Employer is vicariously liable for Employee’s negligent torts committed within the Agent’s “course and scope of employment.”

Liability for Agent’s Torts

Liability for Agent’s Torts

Agent is liable to 3rd party for his own torts.

Principal may be liable for Agent’s torts if they result from

§ Principal’s own tort.

§ Principal’s authorization of tort.

§ Agent’s unauthorized but fraudulent conduct made within scope of agency.

Actions by E-Agents

Actions by E-Agents

An “e-agent” is a semi-autonomous computer program capable of executing specific tasks on behalf of a principal.

E-commerce uses e-agents to create contracts every day.

Liability Authorized & Unauthorized Acts

Liability Authorized Acts

If undisclosed Principal, no liability unless.

§ Principal expressly excluded.

§ Contract is a negotiable instrument.

§ Agent’s performance is personal.

§ 3rd party would have contracted if he knew the Principal’s identity.

Liability Unauthorized Acts

Unauthorized acts outside of Agent’s express, implied or apparent authority. If Agent has no authority, Principal is not liable, but Agent is liable.

Authorized Acts

Authorized Acts

Disclosed or partially disclosed Principal is liable to 3rd party if Agent acts within scope of authority.

Agent has no liability to 3rd P for disclosed Principal’s non-performance. (Agent may be liable if Principal is partially disclosed).

Case 32.1: McBride v. Taxman Corp. (2002).

Liability for Contracts

Principals are classified as:

§ Disclosed: identity known to 3rd P.

§ Partially Disclosed: 3rd P knows he is dealing with Agent, but doesn’t know Principal’s identity.

§ Undisclosed: 3rd party does not know he is dealing with an Agent, and Principal’s identity is totally unknown.

Emergency Powers & Ratification

Emergency Powers

Arises when:

§ Agent should protect Principal.

§ Agent cannot communicate with Principal.

Ratification

1. Agent must act on behalf of Principal.

2. Principal must affirm entire deal.

3. Principal must affirm before 3rd party withdraws from transaction.

4. Principal and 3rd party must have legal capacity to contract when Agent made the deal.

5. Principals must know all the material facts involved in the transaction.